Re John Lockwood Lawrence v Porter and Others (First To Twelfth Respondents); Swancott and Others (Thirteenth To Fifty Second Respondents) and the Australian Journalists Association (Fifty Third Respondent) [1987] FCA 159; 21 IR 119 (18 May 1987)

FEDERAL COURT OF AUSTRALIA

Re: JOHN LOCKWOOD LAWRENCE
And: PORTER AND OTHERS (First to Twelfth Respondents); SWANCOTT AND OTHERS
(Thirteenth to Fifty Second Respondents) and THE AUSTRALIAN JOURNALISTS
ASSOCIATION (Fifty Third Respondent)
No. NSW I19 of 1987
Industrial Law
21 IR 119

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
French J.

CATCHWORDS

Industrial Law - Mandatory injunction - Rule change empowering Council of Association to affiliate with ACTU - Rule change allegedly passed in non-compliance with mandatory procedural requirements - Alleged non-compliance of Rule with section 140(1)(c) of Conciliation and Arbitration Act 1904 - Alleged non-compliance of affiliation resolution with requirements of Rules - Strong case for invalidity of failure to comply with procedural requirements - Mandatory injunction to preserve status quo - No continuing obligation - Balance of convenience favouring grant of mandatory injunction.

Conciliation and Arbitration Act 1904 ss.140, 141.

HEARING

SYDNEY
18:5:1987

Counsel for the Applicant: Mr R C Kenzie QC with Mr M F Moore

Solicitors for the Applicant: R L Whyburn & Associates

Counsel for the Respondents: Mr J W Shaw QC with Mr J W Nolan

Solicitors for the Respondents: Turner Freeman

ORDER

The Federal Secretary, being the Fourth named Respondent herein, forthwith send an urgent telegram on behalf of the Australian Journalists Association to the Secretary of the Australian Council of Trade Unions ("ACTU") in the following terms: On behalf of the Australian Journalists Association I hereby withdraw the application for affiliation to the ACTU made in my letter of 30 April 1987 and request the repayment of the sum of $5,934.20".

The Respondents other than the Australian Journalists Association refrain until further order, or the hearing and determination of the substantive application, from taking any action in reliance upon or consequential upon the resolution passed by the Federal Council on or about 3 April 1987 that the Australian Journalists Association affiliate with the ACTU.

Upon the Respondent undertaking to proceed forthwith to apply for leave to appeal against this decision to the Full Court and upon the Respondents undertaking that it will require the ACTU Executive to defer consideration of the affiliation application until Thursday 21 May 1987, the operation of these orders will be stayed until 5pm on Wednesday 20 May 1987.

Costs reserved.

Liberty to apply.

Note: Settlement and entry of orders is dealt with in Order

36 of the Federal Court Rules.

DECISION

On 3 April 1987, by a postal ballot, the Federal Council of the Australian Journalists Association resolved to seek affiliation of the Association with the Australian Council of Trade Unions ("ACTU").

2. Pursuant to that resolution the Secretary of the Association wrote to the Secretary of the ACTU on 30 April 1987 applying for affiliation and enclosing a cheque for $5,934.20 to cover fees for the first six months of that affiliation.

3. The ACTU Executive in Perth meets in the week commencing Monday, 18 May and at that meeting will consider the Association's application for affiliation.

4. The Association is an organisation of employees registered under the Conciliation and Arbitration Act 1904. One of its members, John Lawrence, its Federal President between 1973 and 1986, has formed the view that actions of the Federal Council leading up to and including the passing of the affiliation resolution are in contravention of the constitution of the Association and contrary to the will of its members as expressed in successive plebiscites.

Background to Proceedings

5. On 1 May 1987 Mr Lawrence instituted proceedings in this Court seeking various orders under ss.140 and 141 of the Conciliation and Arbitration Act 1904.

6. On that day a Rule to Show Cause was made by Beaumont J returnable on 7 May 1987.

7. The respondents then named in the application were the principal office bearers of the Association and members of its Federal Executive.

8. The Federal President was separately named as representative of the members of the Federal Council. The Association was also named as a respondent.

9. Interlocutory relief was sought to restrain the President and Executive from taking any further steps in pursuance of any decision, direction or resolution of the Federal Council on the question of affiliation.

10. When the matter came on before Beaumont J on 7 May the claim for interlocutory relief was not heard. However directions were given which, among other things, gave the applicant leave to join further respondents and consequential directions as to filing and service of the amended rule and further affidavits.

11. In the event the applicant has joined the members of the Federal Council as respondents.

12. A notice of motion seeking interlocutory relief together with a copy of the order of Beaumont J and an affidavit sworn 12 May by Lawrence were delivered to the offices of the Association at 3 pm on that day by way of service on the additional respondents.

13. A covering letter advised that the motion was listed for 2.15 pm on 13 May.

14. The solicitors on record for the respondents originally named were also served with copies of the same documents.

15. The matter came on before me at 2.15 pm on 13 May. Mr Kenzie QC appeared for the applicant. Mr Shaw QC appeared for the original respondents and opposed the preliminary application for an order abridging time for service.

16. I made the order to enable the matter to commence on 13 May on the basis that time would be made available on 15 May to continue the argument so that Mr Shaw had an opportunity to properly address the issues raised on the motion.

17. When the matter resumed on 15 May at 10.15 am Mr Shaw indicated that he now represented the respondents listed on the application with the exception of Brad Turner, Bob Beatty, Rada Rouse, Liz Fell, Arthur Gorrie, Des Driberg and Will Atkins.

18. There had evidently been some difficulty in communicating with these people. In my opinion however all relevant interests were sufficiently represented to enable one to hear and determine the motion for interlocutory relief.

The Relief Sought

19. By his notice of motion the applicant sought an order directing the Federal Secretary to send a telegram on behalf of the Association to the Secretary of the ACTU withdrawing the application for affiliation and requesting repayment of the affiliation fees.

20. He also sought orders substantially to the effect that the respondents take no further steps in pursuance of the affiliation resolution of the Federal Council.

21. Having heard argument on the 13 and 15 May 1987 I delivered my decision at 3.15 pm indicating my preparedness to grant injunctive relief. The matter was then stood over to 9.30 am on Monday 18 May in order to enable to respondents to consider the practicability of a request to the ACTU to defer consideration of the affiliation application until the determination of the substantive application herein.

22. In the event and after hearing further argument on Monday 18 May I made certain orders which are attached to these Reasons and granted the stay to enable the respondents to urgently seek leave to appeal to the Full Court.

23. These Reasons are published in relation to the decision and orders made on 15 and 18 May.

Historical Background to the Affiliation Resolution

24. The issue of affiliation with organisations of the trade unions is one of respectable antiquity in the history of the Association.

25. It was debated in the 1920's and again in the early 1940's.

26. In 1944 a national plebiscite of members voted against the proposal for affiliation, 843 votes to 389.

27. Another such plebiscite in 1956 rejected affiliation by 1344 votes to 624.

28. In 1973 a third plebiscite yielded 2409 "No" votes to 1083 "Yes" votes from a membership said to be 6853 in total.

29. In 1980 the question was again put to members of the Association and again it was answered in the negative with 2343 against affiliation and 1707 in favour.

30. In 1984 a similar proposal was defeated, 2772 votes to 1790.

31. In each case the question put to the plebiscite was, according to Mr Lawrence, to the effect:

"Are you in favour of the AJA affiliating with
the ACTU?"

32. This characterisation was not disputed and I accept it for present purposes as stating the substance of the question as put on those occasions.

33. It is against this background that the question of affiliation came before the meeting of the Federal Council held in Bronte in New South Wales between 2 and 7 November 1986.

The November Meeting of Federal Council

34. On 22 September 1986 a three page Business Paper for a meeting of the Federal Council of the Association to be held on 2 November 1986 was circulated to branches of the Association.

35. It contained no reference to any question of affiliation with the ACTU.

36. Delegates to the Council meeting were given another 11 pages of the Business Paper on their arrival in Sydney on 1 November.

37. No issue of affiliation with the ACTU was mentioned on these additional papers.

38. There was notice of a motion from a West Australian delegate to amend a rule of the Association so that a branch, sub-branch or division might affiliate with a Trades and Labour Council in its territory if a majority of financial members at a general meeting so determined.

39. This motion however was not debated.

40. One of the agenda headings on the original Business Paper was designated "Acceptance of Urgent Business".

41. The minutes of the Federal Council meeting record that under that heading 2 delegates, Messrs Swancott and Phillips moved and seconded a motion:

"That the following items of urgent business be
accepted for consideration at a later stage by
Federal Council."

There then followed a list of items UB-(1) to UB-(18).

42. One of those items, number UB-(8) was as follows:

"Affiliation

That Federal Executive be authorised to
arrange a national plebiscite on AJA
affiliation to the ACTU during 1987."

43. The motion for acceptance of that and the 17 other items as urgent business was recorded in the minutes as "Carried with the required majority". The required majority under the provisions of Rule 8(b) was "60 per cent of total delegates".

44. The mover of the motion the subject of item UB-(8) was shown as a Mr Donohoe.

45. The minutes record that subsequently Mr Donohoe was given permission to move the motion standing in his name in the following form:

"That Federal Executive be authorised to
conduct a national plebiscite on AJA
affiliation to the ACTU between now and the
1988 Federal Council and that this Federal
Council supports the principle and
acknowledges the benefits of AJA state
branches affiliating to their respective Trade
Hall Councils. Further that the AJA make a
donation of $2,000 in 1986 and 1987 to the
ACTU in recognition of their assistance in
superannuation, wages, occupational health and
other matters."

46. An amendment to the motion was moved and accepted by the mover and seconded, that being:

"The Federal Executive be instructed to plan a
comprehensive national information campaign
among the membership as a pre-requisite to
such a plebiscite."

47. On a further motion however consideration of the proposal was adjourned pending a report from a sub-committee comprising Messrs Swancott, Warren and Donohoe.

48. The question of affiliation was raised at the continuation of the Council meeting on 5 November when the following resolution moved by Mr Harriden and seconded by Mr Swancott was carried:

"1. THAT a new Rule 57(a) be inserted to read
as follows:

'Notwithstanding anything to the
contrary in these Rules, Federal
Council, a Branch or Sub-Branch
shall be authorised to affiliate
with any industrial organisation or
peak body of bona fide trade
unions.'

2. Amend Rule 57(c) by deleting the first
sentence and by inserting the following:

'A Branch or Sub-Branch may only
affiliate with a Trades and Labour
Council in its territory after
receiving consent from Federal
Council.'

3. Renumber Rules 57(a), (b), (c), (d), (e)
and (f) accordingly."

49. A further motion also brought under the head of Urgent Business was moved by Mr Donohoe and seconded by Mr Baker and was carried in the following terms:

"THAT Federal Council authorises Federal
Executive to consider and arrange, if
determined, a plebiscite on AJA affiliation to
the ACTU between now and the 1988 Federal
Council.

THAT this Federal Council instructs Federal
Executive to co-ordinate, before any
plebiscite, a comprehensive information
campaign among the membership on the benefits
of affiliation to the ACTU.

THAT Federal Council declares that AJA
branches should affiliate with their
respective Trades Hall Councils in keeping
with the objects of the AJA Rule 3(a)(3).

To enable Federal Executive to arrange the
timing for a plebiscite, in Rule 56(c) add the
words 'instruct Federal Executive to' after
'if Federal Council decides to take a
plebiscite it shall'. Delete 'instruct
Federal Executive' from Rule 56(c)(2).

THAT the AJA make a donation of Two thousand
dollars in 1986 and two thousand dollars in
1987 to the ACTU in recognition of its
assistance on superannuation, wages,
occupational health and safety and other
matters."

50. On 24 November 1986 the then secretary of the Association lodged with the Deputy Industrial Registrar of the Conciliation and Arbitration Commission a statutory declaration setting out various changes to the rules effected by the Federal Council meeting including the alteration to Rule 57.

51. In the declaration at para.8 it was said that all changes, with certain immaterial exceptions there stated, "were considered by Federal Council in conformity with Rule 7(k)".

52. Rule 7(k) which will be considered later, relates to the requirement to give to Council delegates notice of items of business to be discussed at meetings of Federal Council.

53. The Deputy Registrar evidently consented to the changes as required by s.139 of the Act.

The Affiliation Decision

54. It does not appear from the evidence that any further step was taken pursuant to the resolutions of the November meeting of the Council until 16 March 1987 when a document entitled "Circular/Memo" under the letterhead of the Association and over the name of the Federal Secretary was circulated to delegates.

55. It appeared from the circular that at a meeting of the Federal Executive of the Association held in Brisbane, the Executive had resolved to propose to the Council that it consider affiliation with the ACTU.

56. Reference was made to rules of the Association, specifically rule 7(m) providing for special meetings of the Federal Council to deal with urgent matters provided 75% of the delegates considered such a meeting warranted.

57. The circular also invoked rule 7(o) allowing for decisions of special meeting of the Federal Council to be made by postal or telegraphic vote.

58. It went on to advise delegates of two questions thereby submitted to Federal Council and to be answered by postal vote:

"1. Do you agree that a decision of Federal
Council should be taken by postal vote on
the urgent matter of ACTU affiliation?

2. If more than 75% of members of Federal
Council vote 'Yes' on question 1, do you
agree that Federal Council should
immediately seek affiliation with the
ACTU in accordance with rule 57(a)?"

59. A ballot paper was attached to each circular.

60. The circular went on to outline the reasons for which the Federal Executive considered affiliation to be imperative.

61. The affidavit of the present Federal Secretary, Mr Warren, indicates that the postal vote answered the first question in the affirmative, 38 votes to 9 and the second also in the affirmative, 37 to 10.

62. The vote in favour of a postal ballot exceeded the required 75% of delegates by one vote.

63. Pursuant to the vote, Mr Warren wrote to the Secretary of the ACTU on 30 April 1987 applying to affiliate the Association and enclosing a cheque for $5,934.20 by way of fees for the first 6 months.

64. Before considering the applicant's objections to the course taken by the Federal Council it is necessary to refer to the constitution, objects and rules of the Association as they presently stand.

Constitution and Rules of the Australian Journalists Association

65. The Constitution and Rules of the Association set out its objects in Rule 3 which include:

"(1) act for members in any matters whatsoever
connected with their calling;

(2) uphold and defend the professional
interests, status and rights of members
and the usages and customs of
journalists;

(3) safeguard and advance the remuneration
and conditions of employment and
industrial rights and welfare of
members."

66. Control and management of the Association is referred to in Rule 5 in the following terms:

"5. - CONTROL AND MANAGEMENT

Supreme control of the Association shall
rest with financial members voting by
plebiscite. The governing body shall be
Federal Council, with complete authority
over policy, management, and all affairs
of the Association. The general
administration of the Association shall
be vested in Federal Executive, and
through it, Federal Management Committee,
which shall run the day to day affairs of
the Association. The membership of the
Association shall be divided into
Branches and/or Divisions to one of which
each member shall belong. A branch shall
have authority to act for its members
within the scope of these rules and in
accordance with decisions of Federal
Council and/or Federal Executive.
Financial members voting by ballot shall
be the highest authority of a branch.
The management of a branch shall be
vested in a branch committee. Branch
members residing in defined areas of a
branch may be divided into Sub-Branches
and vested with authority to act in
accordance with these rules and under
control of the Branch. A group of Branch
members may be formed into a Section with
authority to advise and assist the Branch
Committee. A group of members employed
within an office may elect a house
committee in consultation with the Branch
Committee."

67. Rule 6 describes the authority of the Federal Council in terms which include the following:

"(a) The governing body of the Association
shall be Federal Council which shall have
complete authority over policy,
management and all matters concerning the
Association and/or its members. It shall
have authority to take any action it
considers necessary or desirable on
policy, management or any matter
concerning the Association and/or its
members and specially to -

(1) determine, direct, alter, enforce
and protect the policy of the
Association in relation to the
industrial and/or professional
welfare of members;

(2) amend, rescind or take any action
concerning the Constitution, Objects
and Rules of the Association;

...

(4) submit any matter or question for
opinion or decision by plebiscite to
all financial members or by ballot
to a portion of financial members;

...

(14) delegate any of its authority or
business to Federal Executive, to
Federal Management Committee, a
Branch, Sub-Branch, Division, an
officer, a member, or any other
person. A decision of Federal
Council shall be final and binding
throughout the Association and shall
remain in force until superseded,
amended or rescinded (a) at a
subsequent meeting of Federal
Council; or (b) by decision reached
by plebiscite."

68. The Council is composed of a Federal President, two Federal Vice Presidents, the Federal Secretary, the Assistant Federal Secretary and the President and Secretary of each branch and additional delegates for each branch.

69. Entitlement to branch representation is by para.(g) of Rule 6, a function of the branch membership provided that each branch is entitled to a minimum of two delegates.

70. Rule 7 deals with meetings of the Federal Council and in particular provides in relation to the biennial meeting:

"(j) Acceptance of any matter for the business
paper of Biennial Federal Council shall
close at 5 pm on October 15 of the year
in which Biennial Federal Council is to
meeting (sic). Any matter other than
reports shall be in the form of
substantive motions. Matter may be
placed on the business paper by Federal
Executive, Federal Management Committee,
a Branch or by any Federal Council
delegate, provided that it conforms to
the requirements of this rule. All
matter for the business paper shall be
submitted in writing to the Federal
Secretary on or before the date mentioned
in this rule. Provided that, where a
biennial meeting is to be held, pursuant
to rule 7(g) in the first quarter of an
odd numbered year, acceptance of any
matter for the business paper shall close
at 5.00 pm fifteen (15) days before the
date set for the opening of the meeting.

(k) The Federal Secretary, in consultation
with Federal Management Committee, shall
as soon as is practicable after October
15 (or such other date as may be fixed
pursuant to rule 7(j)) co-ordinate the
items of business received pursuant to
rule 7(j) and have copies made for
distribution to each Federal Council
delegate at least ten (10) days before
the meeting of Federal Council begins."

71. Special Council meetings are dealt with in paras.(m) to (o) as follows:

"(m) A special meeting of Federal Council may
be held to deal with an urgent matter
connected with the Rules provided that at
least 75 per cent of Federal Council
delegates consider the matter urgent
enough to warrant a special Federal
Council meeting. A special meeting of
Federal Council shall be held in the
event of the removal or suspension of a
Federal officer under the provisions of
Rule 50A.

(n) When 75 per cent or more of Federal
Council delegates consider a Special
Federal Council is warranted under rule
7(m), or when a Federal Officer is
removed or suspended from office, the
Federal Secretary (or Federal President)
shall give each delegate and each Federal
Officer at least 72 hours notice of the
meeting. The notice shall set out the
place, date and time of the meeting and
business which is to be submitted to the
meeting.

(o) Where appropriate, decisions of a Special
Meeting of the Federal Council may be
made by postal or telegrahic vote
provided that reasonable notice of the
matter or matters for decision has been
given to all members of Federal Council.
Matters may only be submitted to such a
meeting by the Federal Executive or
Federal Management Committee."

72. I observe in passing that the concept of a "meeting" does not sit easily with the provision for a postal ballot where there is no mechanism provided for debate or exchange of views in the discharge of a deliberative function.

73. The bringing forward of urgent business at meetings of the Council is regulated by Rule 8 which provides, inter alia:

"(a) When a delegate to Federal Council wishes
to bring forward as urgent business any
matter of a substantive nature not on the
business paper of a Biennial Federal
Council meeting, written notice shall be
given to the Chairman. The Chairman
shall read it aloud and then ask Council
to decide whether the nature of the
matter is, in its opinion, sufficiently
urgent to be dealt with by the meeting.

(b) Unless delegates representing at least
60 per cent of total delegates vote in
favour of the matter being accepted for
consideration later, its merits shall not
again be brought before the meeting.
When Council accepts any matter as urgent
business it shall then determine its
place on the business paper."

74. Rule 15 describes the authority of the Federal Executive in the following terms:

"Authority

(a) Federal Executive shall be the authority
to administer and manage the affairs of
the Association when Federal Council is
not in session. It shall not prevent
Branches from conducting their own
affairs within the Rules, and shall
wherever possible consult Branches before
initiating or determining any question
involving major policy. Federal
Executive may exercise any of the powers
of Federal Council except the power to -

(1) add to, amend or rescind the
Constitution, Objects and Rules of
the Association; or

(2) act contrary to or alter or revoke
any decisions of Federal Council
unless authorised to do so by reason
of a majority decision by plebiscite
of members.

Decisions

(b) All decisions of federal executive shall
be binding throughout the Association and
shall remain in force unless superseded,
amended or rescinded by Federal Council
or by a plebiscite of members of by a
subsequent meeting of Federal Executive."

75. The membership of the Association is divided into Branches and each member is attached to a particular Branch (Rule 20(a)).

76. Decisions of a general meeting of a Branch are binding throughout the Branch "unless superseded, amended or rescinded by a subsequent General Meeting or by decision of Federal Council or Federal Executive or by a decision of a plebiscite or ballot of members" (Rule 20(g)).

77. Plebiscites are provided for in Rule 56. The ways in which a plebiscite may be initiated are set out in para.(a) as follows:

"(a) A plebiscite of all financial members of
the Association may be taken -

(1) by resolution of Federal Council in
session or by a decision under rule
17;

(2) at the request of at least two
Branches in accordance with clauses
(e), (f), (g) and (h) of this rule."

78. Paragraph (f) limits the time within which two or more Branches may request a plebiscite on any decision of Federal Council to 14 days from the close of the meeting at which the decision was made.

79. There follow quite detailed provisions regulating the conduct of a plebiscite including the form in which questions are to be put in the ballot paper, the printing of voting papers, the issue thereof and the return and counting of votes.

80. Rule 57 dealing with affiliation and representation provides, inter alia:

"(a) Notwithstanding anything to the contrary
in these Rules, Federal Council, a Branch
or sub-Branch shall be authorised to
affiliate with any industrial
organisation or peak body of bona fide
trade unions.

...

(d) A Branch or sub-Branch may only affiliate
with a Trades and Labour Council in its
territory after receiving consent from
Federal Council. Representation of a
Branch, Sub-Branch or Division affiliated
with a Trades and Labour Council shall
not take part or vote in any political
discussions at a Trades and Labour
Council unless and until the Committee or
a General Meeting of the Branch,
Sub-Branch or Division has determined
what attitudes or action the
representatives should take.

(e) A Branch, sub-Branch, Division or Section
shall not affiliate with or be
represented on any other organisation,
cause or movement unless Federal Council
or Federal Executive has granted
approval.

(f) Federal Council or Federal Executive may
approve of any Branch, sub-Branch,
Division or Section being affiliated with
or represented at any organisation, cause
or movement to deal specifically with:

(1) protection of freedom of speech or
of the press or of civil liberties
in so far as they affect members of
the Association in their calling;

(2) promotion of cultural and
educational activities which are of
value to members of the Association
in their calling;

(3) industrial matters which are in
harmony with the objects and
industrial aims of the Association."

81. "Rule 61 regulates the process by which the Constitution may be altered:

'(a) The Constitution, Objects and Rules of
the Association shall not be altered,
amended, added to, or repealed, except by
resolution of a meeting of Federal
Council.

(b) Any proposal to alter, amend, add to or
repeal the Constitution, or Objects or
any of the Rules of the Association shall
not be considered by the Federal Council
unless all members of the Federal Council
have been given notice of the proposal in
accordance with Rule 7(k), or unless the
provisions of Rule 8(b) have been
complied with.'"

82. I accept that Rule 61 makes clear that the notice requirements for ordinary meetings and the special majority requirement for urgent business to be considered by Federal Council are mandatory in relation to alterations to the Constitution.

The Validity of the Amendments to Rule 57

83. The applicant first attacks the validity of the amendment to Rule 57 passed at the Biennial meeting of the Federal Council in November. For it is that amendment which by the new para.(a) would authorise the Council to affiliate the Association with "a peak body of bona fide trade unions".

84. The applicant alleges that the Federal Council in passing the amendment did not comply with procedural requirements of the Constitution.

85. The question of an alteration to the Rules relating to affiliation was not mentioned in the business paper as required by Rules 7(j) and 7(k) of the Constitution.

86. The only way therefore in which the matter could be brought before the Federal Council was as urgent business under Rule 8.

87. The question relating to affiliation which was accepted as an item of urgent business under that Rule was a proposed resolution designated item UB-(8):

"THAT Federal Executive be authorised to
arrange a national plebiscite on AJA
affiliation to the ACTU during 1987."

88. No specific consideration was given under the provisions of Rule 8, to the proposal later moved under that head whereby the Council would be given direct authority to affiliate the Association.

89. Rule 8 authorises the Federal Council to consider as urgent business "any matter of a substantive nature not on the business paper" where a constitutional majority of 60 per cent accepts the matter for such consideration

90. The threshold requirements of a special majority and separate consideration of the question whether the proposed urgent business should be dealt with at all reflect the importance placed by the Constitution on a departure from the notice provisions of Rule 7.

91. The importance of such a departure is emphasised in the case of proposed Rule changes by the provisions of Rule 61 which make mandatory the requirement for compliance with either Rule 7 or Rule 8.

92. For the respondents it was submitted that once a matter is properly accepted as urgent business, any question having a sufficient relevant rational connection with it may be considered as a part of that urgent business.

93. What comes within the scope of a matter accepted as urgent busines will necessarily involve evaluative judgment.

94. In my opinion however there is prima facie a significant distinction between a resolution seeking to authorise the Federal Executive to conduct a plebiscite on the question of affiliation and a resolution which confers on the Federal Council power to effect affiliation without a plebiscite.

95. The two resolutions on the face of it do radically different things.

96. The distinction is sharpened with the recognition that the resolution accepted as urgent business proposes to put in motion the decision-making process of a plebiscite. The resolution passed effects a change in the Constitution.

97. It is also in my view appropriate to consider the significance of the distinction between that which was accepted under Rule 8 and that which was ultimately passed, against the background of a history over 40 years of plebiscites rejecting affiliation proposals.

98. In my opinion the applicant has made out a strong case for the proposition that the amendment to Rule 57 was passed in breach of mandatory procedural requirements of the Association's Constitution. It follows, if that view is correct, that the Federal Council did not have authority in the face of a recent plebiscite to the contrary to arrogate to itself the decision to affiliate the Association with the ACTU.

99. It may be said that the Federal Council which voted on the rule change was the same Federal Council empowered to accept matters as urgent business.

100. The number of delegates attending the meeting at the time the rule change proposal was put and the extent of the majority in favour of it at that time does not appear from the record. In the end however it is difficult to see how the position could be altered even had there been a unanimous vote in favour of the rule change.

101. It was also put on behalf of the applicant that the rule change if passed in accordance with the requirements of the Constitution would contravene the requirements of para.140(1)(c) of the Conciliation and Arbitration Act.

That provision is in the following terms:
"140(1) The rules of an organisation --

...

(c) shall not impose upon applicants for
membership, or members, of the
organisation, conditions, obligations or
restrictions which, having regard to the
objects of this Act and the purposes of
the registration of organisations under
this Act are oppressive, unreasonable or
unjust; ..."

102. Reference was made to the ojbects of the Act as set out in s.2 and in particular para.(f):

"to encourage the democratic control of
organisations so registered and the full
participation by members of such an
organisation in the affairs of the
organisation."

103. Accepting that the question whether Rule 57(a) complied with this requirement must be answered with an evaluative judgment, counsel for the applicant pointed to the important role of direct membership control through plebiscites and otherwise under the provisions of the Constitution. He also pointed to the history of plebiscites on the question of affiliation which tend to indicate that the question is one of fundamental importance to the members. Counsel for the respondent on the other hand referred to the recent broadening of the democratic base of the Federal Council, the fact that all branches are represented on it and the fact that any two branches can, within 14 days of a Federal Council decision, requisition a plebiscite on it (Rule 56(f)).

104. In my opinion there may well be a serious question to be tried on this issue but the applicant does not have such a clear prospect of success as would be necessary to justify on this point the unusual course of issuing a mandatory injunction -- State of Queensland v. Australian Telecommunications Commission [1985] HCA 25; (1985) 59 ALJR 562.

105. It was also contended for the applicant that the postal resolution in favour of a special meeting was invalid as the subject matter was not, as required by Rule 7(m), "an urgent matter connected with the Rules" (emphasis added).

106. Again while accepting that there could be an arguable case on this point it does not clear the threshold necessary to attract the grant of a mandatory injunction.

107. The respondents contend against the grant of a mandatory injunction in any event on the basis that affiliation is reversible if the applicant should ultimately succeed. On the other hand if affiliation cannot be effected at the pending ACTU Executive meeting in Perth then the Association will, by virtue of the ACTU rules, be unable to participate in its 1987 Congress in September.

108. Evidence was given of various pressing issues facing both print and media journalists on which it was said to be desirable that the Association, as an affiliate of the ACTU, have effective input to its policy-making process.

109. The extent to which these issues do indeed require the urgent affiliation of the Association is controversial.

110. The question whether the Association should be affiliated to the ACTU is and has been through the history of the Association, one of fundamental importance. It goes in the perception of some of the members as disclosed in records of plebiscite debates to the question of the nature and objects of such an Association.

111. The step of afffiliation once taken and even if later reversed may rightly be seen as one of great symbolic importance to many of the Association's members.

112. To say that is to make no comment on the merits of affiliation. Indeed the present applicant says he is is favour of affiliation provided that decision is made in accordance with the Constitution.

113. Nor do these observations involve any judgment on the propriety of a mechanisms whereby the Federal Council itself is authorised to make the decision.

114. The importance of the issue to the membership of the Association suggest that if a strong case has been made out that the Federal Council lacked authority to make the affiliation decision then that decision should not be implemented until its validity has been properly tested.

115. Further although the injunction sought in paragraph 1 of the motion is mandatory in nature it has the effect of preserving the status quo and does not impose any continuing positive obligation on the respondents.

Conclusion

116. In my opinion and for the above reasons the applicant has demonstrated that there is a substantial prospect of success for his attack upon the validity of alterations to Rule 57(a) in so far as that attack is based upon a failure to comply with the mandatory procedural requirements of the Constitution of the Australian Journalists Association.

117. How high those prospects must be to support the grant of mandatory injunctive relief depends upon the precise nature of the relief and the extent and nature of the inconvenience on either side according to whether the relief is granted or withheld.

118. While it appears that the step of affiliation once effected may be undone, that step if taken, will be of substantial symbolic importance to members of the Association who have in the past repeatedly rejected it in plebiscites stretching over 40 years.

119. In my opinion the prospects of success are sufficiently high to support a mandatory order to halt the process of affiliation pending the final determination of these proceedings or until a further order is made.

120. A fortiori an ancillary restraint along the lines of that set out in paragraph 3 of the notice of motion is also justified.

121. Having regard to Mr Kenzie's invitation to the respondents to request the ACTU Executive to defer consideration of the application for affiliation until the outcome of these proceedings, I heard from the parties as to whether a mandatory order requiring the respondents to do no more than that and thereby to preserve the position of the Association with respect to the 1987 Congress would be sufficient.

122. Counsel for the respondents however advised the Court that if the affiliation decision were deferred beyond Thursday 21 May 1987, the last day of the ACTU Executive meeting in Perth, then the Association would be unable to participate in this year's Congress.

123. In the event and after hearing further argument I decided to make orders in the form of the Minutes attached to these reasons incorporating a stay order to enable the respondents to seek the leave of the Full Court to appeal from my decision.